Joseph Franklin Archives

Three inmates’ attorneys argue against setting of their execution dates

February 24, 2014 By Mike Lear

Attorneys for three men sentenced to be executed have presented their arguments to the Missouri Supreme Court why it shouldn’t set a date for their executions. The Court ordered those attorneys to prepare those arguments in Show Cause orders issued in each case, January 29. The State Attorney General’s Office has responded to two of them.

Russell Bucklew, William Rousan and Cecil Clayton (photos courtesy; Missouri Department of Corrections)

Among the arguments attorneys for William Rousan, Russell Bucklew and Cecil Clayton separately make is that because their clients are plaintiffs in Zink v. Lombardi, ongoing federal litigation regarding Missouri’s lethal injection process, their executions should not proceed until that has been settled. To this point, the Attorney General’s Office argues legal precedent that federal litigation is not a reason not to set an execution date. Joseph Franklin, Allen Nicklasson and Herbert Smulls were also plaintiffs in Zink v. Lombardi when they were executed in November, December and January, respectively.

Attorneys for Clayton argue that he is incompetent to understand his punishment due to a deteriorating mental state, in part because of a head injury 25 years before he fatally shot Berry County Sheriff’s Deputy Christopher Castetter in November, 1996. That injury at a sawmill resulted in the removal of part of the right frontal lobe of his brain. The Attorney General’s Office’s response to the arguments of Clayton’s attorneys is due March 5.

Attorneys for Bucklew, who in 1996 shot Michael Sanders, the presumed new boyfriend of his ex, say he suffers from malformed blood vessels that cause among other things, bleeding from his mouth and eyes, and could increase the risk of a painful or prolonged lethal injection. The state argues that doesn’t merit an indefinite delay in setting his execution date.

Rousan also claims instructions given to the jury at his trial were confusing; an issue the state says the Court and federal courts have already dealt with. Rousan, his son and brother participated in the murder of a rural Bonne Terre couple as part of a cattle theft and robbery.

Missouri is scheduled to carry out the execution by lethal injection of Michael Taylor early Wednesday morning. Taylor is one of two men sentenced to death after pleading guilty to the 1989 murder of 15-year-old Ann Harrison of Kansas City.

On Friday the State Supreme Court set March 26 as the date for the execution of Jeffrey Ferguson for the 1989 abduction, rape and murder of 17-year-old Kelli Hall in St. Louis County.

Both Ferguson and Taylor were among four men for whom the Supreme Court in December ordered attorneys to present arguments why their execution dates should not be set. The others of those four were Roderick Nunley and David Barnett. Nunley is the second man who plead guilty in the murder of Harrison. Barnett stabbed each of his grandparents more than 10 times at their Glendale home before stealing their car and $120 in cash.

ACLU head discusses execution protocol lawsuit

October 25, 2013 By Mike Lear

The American Civil Liberties Union of Missouri has filed a lawsuit challenging the Missouri Department of Corrections’ new execution protocol for its protections for the providers of execution drugs.

When the Department updated its execution protocol this month, it redefined who is considered a member of an execution team to include anyone who prescribes, compounds, prepares or otherwise supplies execution drugs.

Because state law prohibits naming members of an execution team, the ACLU then had to take down documents on its website regarding an earlier protocol because they include the names of suppliers and manufacturers of propofol. A member of an execution team whose identity is revealed could file a lawsuit and recover actual and punitive damages from the entity that revealed that identity.

ACLU Missouri Executive Director Jeffrey Mittman says that definition is too broad.

“This redefinition, to broadly include any member of the execution team including those who provide the drug, is an over broad and unconstitutional, as applied, restriction on free speech.”

When the ACLU publicized public documents about the supply of propofol under the previous protocol, they revealed that the state’s supply had been provided in error by two different suppliers, both of whom had been seeking their return. Missouri shortly thereafter returned its supply of propofol.

Mittman says such revelations are why the publication of such materials should be allowed.

“That’s why the Sunshine Law. That’s why a system of checks and balances. That’s why an organization committed to ensuring that government is doing its job properly is so important.”

The new protocol calls for the Department to carry out executions using the drug pentobarbital, commonly used to euthanize animals. It will be supplied by a “compounding pharmacy,” which typically mixes drugs for individual prescriptions. Mittman says those pharmacies have presented problems in the past.

“A few years back, compounding pharmacies were involved in materials that were not only not beneficial to patients, but actually harmed and in some cases killed patients. There are limited Federal Drug Administration controls over their quality, their expertise, their procedures.”

Mittman says the ACLU wants to be able to put the documents regarding the earlier protocol back up, and to be able to post documents regarding the updated protocol once it has them.

“The ACLU believes that the people of Missouri have a right to know, if the state is executing someone in their name, what procedures are being followed, how it’s being done and what policies and procedures are put into place.”

Some have cited the need for protection under the law of the identity of execution team members in order to prevent retaliation against them. Mittman says the courts have found that there are acceptable protections that are well-defined.

“There are instances where secrecy can be required and is necessary to a proper functioning government. The rule in our country has fortunately always been that if the government is going to withhold information … there needs to be a very specific reason to do that and that secrecy needs to be imposed on narrow grounds that are tailored to fit the government interest.”

Earlier this month Governor Jay Nixon cancelled the execution of convicted murdered Allen Nicklasson, that would have happened Wednesday morning, before ordering the Department to create a new protocol. His was to have been the first execution using propofol. Still scheduled is the November 20 execution of Joseph Franklin, convicted for a 1997 murder.

Mittman says the ACLU of Missouri is not planning action regarding the Franklin execution.

“Because of the importance of the issue right in front of us and right in front of the court, for now we want to focus on ensuring that we are briefing as best as possible and making the most appropriate arguments to the court.”

Schaefer asks Nixon to ensure death penalty can be carried out

October 7, 2013 By Mike Lear

The State of Missouri only has enough drugs to execute three more people, and a state lawmaker has asked the Governor to act so that the death penalty can continue to be carried out.

The current protocol for executions in Missouri, as established by the Department of Corrections, calls for the use of a lethal dose of the anesthetic propofol. The Missouri Society of Anethesiologists says propofol is one of the most commonly used anesthetics in the U.S. and if it is used for even one execution in the United States, the European Union might block export of that drug to this country. Approximately 85 percent of propofol used in the U.S. comes out of E.U. countries, and domestic manufacturers are not believed to be able to make up that shortfall.

Missouri is scheduled to carry out the execution of Allen Nicklasson on October 23 and of Joseph Franklin on November 20, both using propofol.

Columbia Senator and attorney general candidate Kurt Schaefer says as the use of propofol to carry out executions is being called more and more into question, Governor Jay Nixon must act. He has written a letter asking the Governor to propose a budget including money for the construction of a new gas chamber, or to propose a change to statute allowing for a third method of execution. Lethal gas and lethal injection are currently the only two forms of execution Missouri statute allows for.

The current gas chamber at the decommissioned Missouri State Penitentiary was last used for a gas execution in 1965 and Schaefer says it could not be used now, due to its condition and location in a populated area.

The Governor and the legislature both have a say in creating the budget for a coming fiscal year, but Schaefer believes for the money to build a new one to be added to the budget, the Governor would have to propose it.

“The Governor doesn’t allow … really for the last five years with relatively few exceptions … has not allowed anything to be added to the budget by the legislature that he did not have in his initial budget recommendation that he gave us in January of a given year.”

Schaefer says he doesn’t think it is likely a new method of execution will have to be explored, but says if Governor Nixon is not going to ensure that one of the two methods in statute will be viable, then Nixon must tell the legislature what he would propose to do to carry out executions.

Schafer says the state can not choose to not enforce its capital punishment statutes.

“It’s inappropriate to have a jury go through that, have law enforcement go through everything it takes to build a capital case, which is going to get a higher level of review from the courts, and then tell the victim’s family and the victim’s loved ones that is the punishment, and then basically at the end of that process say, ‘Well, sorry you all went through that … we’re not going to administer it now,’ even though the law says it must be administered.”

The request comes after Attorney General Chris Koster suggested that because of issues with the drug Missouri uses for lethal injections, Missouri might have to return to using a gas chamber. Schaefer says he, Koster and Nixon (who is a former attorney general) are likely on the same page on this issue.

“Obviously the 48 people on death row … most of them were put there by the current Governor during his 16 years as Attorney General. As I say in my letter, he really had been at the forefront of capital punishment issues, so I suspect that he does take it very seriously and I wouldn’t expect anything less.”

Schaefer is also the first Republican to formally announce his candidacy for Attorney General in 2016.